The Custodian's Carelessness and Its Consequences

FROM OUR HOTLINE – the careless custodian

I had to ship equipment to Miami for a trade show. I called my friend to ask if I could ship the stuff to him. He was hesitant, so I offered to pay him for the favor. He agreed and placed the equipment in his garage the moment it arrived. He didn’t lock the garage door, though, and thieves stole my projector.

Q. He paid for the projector. Am I still obligated to pay him for the favor as agreed?

A. The job description of a shomer sachar (paid custodian) – and the question of payment if the object is stolen due to his negligence – is subject to debate. One perspective is that the shomer sachar is a contractor who is paid for the job that he does, and he is paid for taking care of the item in his care. Another view is that the shomer sachar is like an insurance company, and he accepts the obligation to reimburse the owner if the item is not returned. Ketzos HaChoshen (227:11) states that a shomer sachar is paid to watch the object in his care. His proof is the Gemara Bava Metzia (58a) that discusses a paid custodian for the coins that go to the Bais HaMikdash. The Gemara rules that he must take an oath that he took proper care of the coins in order to receive wages. This clearly indicates that the shomer sachar must demonstrate that he did his job of watching the object in order to receive pay. Chazon Ish (Bava Kama 7:18) rejects this proof, since that particular paid cutodian would not be obligated, for technical reasons, to repay the Bais HaMikdash if the coins were stolen. Therefore, in order to be paid, he must demonstrate that he did his job. Howevere, in regular cases of a shomer sachar who is obligated to pay if he cannot return the object, he does not lose the right to his wages even if the object is not returned – since the money he receives was for guaranteeing the object. By reimbursing the owner for the stolen object, he did his job. In other words, according to Chazon Ish, a shomer sachar is paid for accepting liability for the object, whereas according to Ketzos HaChoshen, he is paid to watch the object.

Teshuvas Maharil Diskin (Kuntres Acharon 5:249) [sic – link], however, writes that although there are differences between these two positions, there is no practical difference between them when it comes to the issue of compensation. Say your projector was worth $500 and your friend was to earn $100. According to the Chazon Ish, the shomer sachar owes the owner $500, but the owner owes the shomer $100. When combined, the result is that the shomer owes the owner $400. According to Ketzos HaChoshen, the shomer should pay the owner $500 for the projector. However, had the projector been properly returned, the owner would have been obligated to pay $100. This means that the owner would have been left with $400. Since the shomer is obligated to cover only the owner’s loss, he is only obligated to pay the net loss of $400.

Thus, for your question, the shomer would be liable for only $400 according to all authorities.